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LEWIS v. CATES, 15-cv-791 DMS (MDD). (2016)

Court: District Court, N.D. California Number: infdco20160108913 Visitors: 18
Filed: Jan. 07, 2016
Latest Update: Jan. 07, 2016
Summary: ORDER ADOPTING REPORT AND RECOMMENDATION DANA M. SABRAW , District Judge . On April 9, 2015, Plaintiff Brian Deverick Lewis, a state prisoner proceeding pro se, filed this Complaint pursuant to, among other statutes, 42 U.S.C. 1983. ECF 1. On September 14, 2015, Defendants filed a Partial Motion to Dismiss the Complaint, challenging Claims One and Three. ECF 9. Plaintiff opposed the motion. Claim One challenges the due process of the prison's procedures, while Claim Three alleges due p
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ORDER ADOPTING REPORT AND RECOMMENDATION

On April 9, 2015, Plaintiff Brian Deverick Lewis, a state prisoner proceeding pro se, filed this Complaint pursuant to, among other statutes, 42 U.S.C. § 1983. ECF 1. On September 14, 2015, Defendants filed a Partial Motion to Dismiss the Complaint, challenging Claims One and Three. ECF 9. Plaintiff opposed the motion.

Claim One challenges the due process of the prison's procedures, while Claim Three alleges due process violations by two individual defendants, Mathew Cates and Daniel Paramo, in connection with the prison's housing procedures. On referral from this Court, the Magistrate Judge issued a Report and Recommendation ("R & R") on Defendants' motion. ECF 15. The Magistrate Judge recommended that this Court dismiss both Claims with leave to amend, and ordered that all objections to the R & R be filed by December 23, 2015.

The Court reviews de novo those portions of the R & R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. But "[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id. "When no objections are filed, the de novo review is waived." Marshall v. Astrue, No. 08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).

In this case, the deadline for filing objections was December 23, 2015. No objections were filed, and neither party has requested additional time to do so. Consequently, the Court may adopt the R & R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, having conducted a de novo review of Defendants' motion to dismiss, the Complaint, and the R & R, the Court hereby approves and ADOPTS the R & R in its entirety (ECF 15), and GRANTS Respondents' motion to dismiss Claims One and Three. Plaintiff may amend Claim One if the amendment alleges a liberty interest in avoiding administrative segregation placement that imposes atypical and significant hardship upon Plaintiff. Plaintiff also may amend Claim Three to allege a denial of due process arising from Plaintiff's subsequent administrative segregation placement by Defendants Cates and Paramo. The Court dismisses Defendant Cates from this action without prejudice.

IT IS SO ORDERED.

Source:  Leagle

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